West Liberty University Board of Governors and West Liberty University, Defendants Below, Petitioners
Stewart Lane, Plaintiff Below, Respondent
West Liberty University Board of Governors and West Liberty
University, by counsel, Thomas E. Buck and Bruce M. Clark,
appeal various pretrial rulings in Respondent Stewart
Lane's action for premises liability and/or defective or
dangerous condition. Respondent, by counsel James R. Leach
and Victoria J. Sopranik, filed a response in support of the
circuit court's order and also raised a cross-assignment
of error. Petitioner filed a reply.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the Court finds no substantial
question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court's order
is appropriate under Rule 21 of the Rules of Appellate
the afternoon of March 1, 2012, nineteen-year-old Stewart
Lane (the "plaintiff"), then a full-time student at
West Liberty University (the "University" or
"defendant"), was swimming in the University's
pool with several friends. The lifeguard on duty was West
Liberty University student/employee M.C. Boyd. Plaintiff and
his friends asked the lifeguard to set up the
University's portable basketball hoop (the
"hoop") so they could play basketball in the pool.
The lifeguard retrieved the basketball hoop from a storage
room and set it at the edge of the pool.
basketball hoop was four to five feet tall and about as wide.
It had a square plastic base that could be filled with water.
The base was composed of translucent white plastic through
which one could see if the base contained water. There was
little or no water in the hoop's base. There were no
warnings on the hoop. The lifeguard later admitted she was
not trained in how to set up the hoop, she knew the hoop was
unstable without water in the base, and the hoop could tip
over if touched. The lifeguard claimed she asked the men if
they had used the hoop before and twice warned that the hoop
could fall into the water. Plaintiff claims he heard neither
the lifeguard's question nor her warning.
thereafter, one of the swimmers dunked a basketball through
the hoop causing the hoop to fall. The swimmers righted the
hoop and continued their basketball game. Thereafter, another
player dunked the basketball; the hoop again fell and was
again reset on the pool's edge. During these "dunks,
" the players held onto the rim of the hoop, so that
when the hoop fell, it did not land in the pool.
later, plaintiff dunked the basketball and then went under
the water's surface. However, as he emerged from the
water, the steel rim of the falling hoop struck
plaintiff's face causing lacerations and heavy bleeding
that was difficult to staunch. Plaintiff was taken to a
hospital for treatment. Plaintiff's injuries required
plastic surgery, which was followed by a hospitalization for
infectious cellulitis. A few years later, plaintiff underwent
a scar revision surgery. Plaintiff's medical expenses
totaled an undisputed $36, 000, and he was left with a
permanent facial scar.
lifeguard did not see the hoop's rim strike
plaintiff's face because she was studying for a test. She
later admitted she knew it was a violation of her duties to
be studying while patrons were at the pool. She also admitted
it was her job to keep the pool safe, to enforce pool rules,
to stop any dangerous activity by pool patrons, to remove any
defective or dangerous pool equipment, and to notify her
supervisor of any issues.
plaintiff was taken to the hospital, the lifeguard placed the
basketball hoop in a dumpster near the pool. The next
morning, the lifeguard notified her supervisor, Robin
Brunner, of plaintiff's injuries. Subsequently, Dr.
Rhonda Noble, the University's Chairperson of the
Department of Health and Human Resources, who was responsible
for the pool, was also notified of plaintiff's injuries.
Plaintiff claims that the timing of these notices would have
allowed the University's staff to retrieve the hoop from
the dumpster, but the staff failed to do so. Dr. Noble later
testified at her deposition that the "[f]irst thing you
do is inspect the equipment because that's the first
thing how they prove negligence if the equipment was unsafe
or they were not supervised."
sued the University and its Board of Governors (the
"defendants") for the damages caused by his
injuries. Plaintiff alleged that the hoop was not intended to
be used without filling the base with water, and that by
allowing plaintiff to use the hoop without its base being
filled with water, defendants breached their duty to protect
him from an unsafe, defective, and dangerous condition
located on the University's property. Defendants
countered that the hoop was safe; that it could be used with
or without water in its base depending on whether a permanent
or temporary use was contemplated; and that the condition of
the hoop was obvious.
to trial, the parties debated the impact of the
lifeguard's decision to dispose of the basketball hoop
before it could be inspected. Plaintiff made a motion to
preclude the defendants from introducing evidence that the
hoop was "not unsafe." By order entered April 29,
2016, the circuit court granted plaintiff's motion
largely because defendants failed to preserve the hoop.
Specifically, the court ruled that,
plaintiff will be permitted to argue and present evidence
that the hoop was unsafe and dangerous due to the fact that
it had no or very little water in it prior to the incident.
Defendants will not be permitted to argue, present evidence,
or attack/impeach plaintiff's expert/evidence that the
hoop was not unsafe, not dangerous, and/or not defective. In
the event that defendants attempt to attack/impeach
plaintiff's expert/evidence in this way, a spoliation
instruction will be given at that time.
in a May 5, 2016, order, the circuit court modified and
clarified its April 29, 2016, order and ruled that, because
the specifics of the hoop were unknown, "no evidence may
be presented [by any party] as to whether this hoop was
'assembled' safely." However, the court also
ruled that if the proper foundation was laid, plaintiff would
be allowed to provide general opinions regarding poolside
basketball hoops, and to mention that defendants disposed of
the hoop and, as a result, its make, model, and safety
instructions could not be determined.
the defendants filed a motion for summary judgment. In their
motion, defendants argued (1) that plaintiff failed to
provide any evidence that the hoop was unsafe, therefore, he
could not succeed on a premises liability/unsafe condition
claim; (2) plaintiff's only evidence regarding the hoop
was an expert who admitted in his deposition that he knew
nothing about the hoop that had caused plaintiff's
injuries; and (3) plaintiff's claims were barred by the